James Bowland, Appellant, v. Harry Tinsley, Warden of the Colorado State Penitentiary, Appellee, 268 F.2d 666 (10th Cir. 1959)

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US Court of Appeals for the Tenth Circuit - 268 F.2d 666 (10th Cir. 1959) June 25, 1959

John H. Gately, Colorado Springs, Colo., for appellant.

John W. Patterson, Asst. Atty. Gen. (Duke W. Dunbar, Atty. Gen., and Frank E. Hickey, Dep. Atty. Gen., on the brief), for appellee.

Before MURRAH, PICKETT, and BREITENSTEIN, Circuit Judges.


Appellant was convicted in the District Court of El Paso County, Colorado, of robbery under aggravated circumstances and was sentenced to imprisonment for 25 to 50 years. The Colorado Supreme Court affirmed, 136 Colo. 57, 314 P.2d 685, and the United States Supreme Court denied certiorari, 355 U.S. 934, 78 S. Ct. 418, 2 L. Ed. 2d 417. Appellant then brought habeas corpus in the United States District Court for the District of Colorado. The only allegation in the petition worthy of note was that the prosecuting officials knowingly used perjured testimony at the appellant's state court jury trial to obtain conviction.

The trial court, after noting certain procedural difficulties, held that the evidence failed to establish that perjury was committed at the trial and that assuming perjury was committed it was not established that the state law officials had knowledge thereof.

We have examined the record submitted to us by the appellant. The evidence as to perjury and knowledge is conflicting. As there is adequate support for the findings of the trial court, they are not clearly erroneous and must be upheld. Williams v. United States, 10 Cir., 267 F.2d 559.